Rivera-Soto reverses course, will vote in some Supreme Court cases

Associate Justice Roberto Rivera-Soto has changed his mind about not participating in any Supreme Court cases in which a temporarily assigned appellate judge takes part, though he says he still might not cast votes in cases where that judge casts a vote that affects the outcome of the case.

Rivera-Soto cast a dissenting vote in the Supreme Court decision released today — the first by the court since Rivera-Soto declared last month that he’d refuse to participate in decisions because he viewed the long-term presence of Appellate Judge Edwin Stern on the Supreme Court as unconstitutional.

“Among the varied reactions to (my December opinion), a particularly sober, thoughtful, measured and ultimately persuasive analysis stands out, a voice that has triggered additional reflection on the course I earlier charted,” he wrote. “Although it does not modify my earlier conclusion concerning the unconstitutionality of the court’s present composition, that analysis has resulted in a more nuanced view” of how to proceed.

“This process has revealed a previously unconsidered, but nevertheless reasoned and measured alternative approach, one that minimizes the jurisprudential uproar a blanket abstention might create but that also maintains the intellectual and constitutional integrity that undergirds my earlier abstaining opinion,” he wrote.

Rivera-Soto last week announced, through Christie’s office, that he doesn’t want to be renominated to the court when his term expires this year. It’s not clear Christie would have renominated him. Senate Democrats have proposed a resolution calling on Rivera-Soto to resign immediately — although that was when he was refusing to take part in court cases.

Senate President Stephen Sweeney said Rivera-Soto still ought to go.

“If there was any lingering question that Rivera-Soto is unfit to serve and must leave the court immediately, it’s now been answered. When a justice’s decision is based on hearing voices, it’s time to go,” Sweeney said.

“I don’t know which is worse, Rivera-Soto’s original decision not to rule or today’s about-face. Neither is rooted in any solid ground of law, logic or common sense,” he said. “Rivera-Soto’s spinning so fast to reclaim whatever shred of relevance or credibility he still has it’s amazing he hasn’t been flung out of the Supreme Court and clear across the Delaware River.”

Sen. Richard Codey said Rivera-Soto’s new stance on the matter means essentially that “when the difficult cases come up, he will take a knee, but when everyone agrees, he will happily jump in and actually do his job.”

“I must admit I underestimated Justice Rivera-Soto. I thought he could not make his tenure on the court any more bizarre or shameful. Today he proved me wrong,” Codey said.

Click through to read in full the portion of today’s dissenting opinion by Rivera-Soto that relates to his decision to take part in the case.

“In my opinion in Henry v. New Jersey Department of Human Services, I set forth the view that the Court, presently ‘constituted as one Chief Justice, five Associate Justices and a Judge of the Appellate Division selected unilaterally by the Chief Justice, . . . is unconstitutional and its acts are ultra vires[.]’ I added that, as a result, ‘I will continue to abstain from all decisions of this Court for so long as it remains unconstitutionally constituted.’

“Among the varied reactions to Henry, a particularly sober, thoughtful, measured and ultimately persuasive analysis stands out, a voice that has triggered additional reflection on the course I earlier charted. Although it does not modify my earlier conclusion concerning the unconstitutionality of the Court’s present composition, that analysis has resulted in a more nuanced view of the intersection between the Chief Justice’s exhortation that my ‘considered views as a voting Justice are worthy of consideration by fellow members of this Court and the litigants who appear before it’ and that I ‘should fully participate in this matter and all others presented for the Court’s review,’ and the core constitutional infirmity attendant to the temporary appointment of a Superior Court judge to the Supreme Court when not necessary for a quorum, as highlighted by Justice Hoens in Henry.

“This process has revealed a previously unconsidered, but nevertheless reasoned and measured alternative approach, one that minimizes the jurisprudential uproar a blanket abstention might create but that also maintains the intellectual and constitutional integrity that undergirds my earlier abstaining opinion.

“The result of that process is that I will cast a substantive vote in every case in which the judge of the Superior Court temporarily assigned to serve on the Supreme Court participates except for those in which the temporarily assigned judge casts a vote that affects the outcome of the case.

“In those latter cases as described in Justice Hoens’s dubitante opinion — that is, the cases in which the judge of the Superior Court temporarily assigned to serve on the Supreme Court casts a vote that affects the outcome of the case — I shall defer a decision on casting a vote and reserve the right to abstain for the reasons noted in Henry.

“By approaching the Court’s work in that more directed, pinpointed fashion, a reasoned dialogue on the constitutionality of the temporary assignment process can focus on the substance of the message expressed in Henry.”

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About Michael Symons

Michael Symons has covered seven governors while working in Gannett's Statehouse Bureau -- a stint which actually only stretches back to 2000, but the door revolves quickly in New Jersey politics. He's co-author of the biography "Chris Christie: The Inside Story of His Rise to Power."

About the Authors

Bob JordanBob Jordan has covered state, county and muncipal governments for the past 10 years. He has also covered the gaming industry and has been a sports team beat writer for NHL, NBA and major league baseball teams.E-mail Bob

John SchoonejongenJohn Schoonejongen is state editor for Gannett New Jersey newspapers. He has reported and edited at New Jersey newspapers from Salem County to Passaic County, writing about everything from state politics to lost pigs on the Delaware Memorial Bridge. Born in Camden County, he still speaks with a southern New Jersey accent, much to his wife's annoyance.E-mail John

Michael SymonsMichael Symons has covered seven governors while working in Gannett's Statehouse Bureau -- a stint which actually only stretches back to 2000, but the door revolves quickly in New Jersey politics. He's co-author of the biography "Chris Christie: The Inside Story of His Rise to Power."E-mail Michael